Opinion
1001 KA 18–01410
11-08-2019
The PEOPLE of the State of New York, Respondent, v. Jeremiah MANN, Defendant–Appellant.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT–APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (TIMOTHY S. DAVIS OF COUNSEL), FOR DEFENDANT–APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (NANCY GILLIGAN OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, DEJOSEPH, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Defendant appeals from an order determining that he is a level two risk pursuant to the Sex Offender Registration Act ( Correction Law § 168 et seq. ). To the extent that defendant contends that County Court erred in assessing points under risk factor three (number of victims), risk factor five (age of victim), and risk factor seven (relationship with victim), we reject that contention. The People established by the requisite clear and convincing evidence that defendant's crime involved three or more victims, that the victims were aged 10 and under, and that defendant was a stranger to the victims, and accordingly the court properly assessed defendant points under those risk factors (see Sex Offender Registration Act: Risk Assessment Guidelines and Commentary at 10–12 [2006] [Guidelines]; People v. Johnson, 11 N.Y.3d 416, 419, 872 N.Y.S.2d 379, 900 N.E.2d 930 [2008] ; see generally Correction Law § 168–n [3 ] ). We also reject defendant's contention that the court erred in denying his request for a downward departure to a level one risk. Defendant failed to prove, by a preponderance of the evidence, a "mitigating factor of a kind, or to a degree, that is otherwise not adequately taken into account by the guidelines" (Guidelines at 4; see generally People v. Loughlin, 145 A.D.3d 1426, 1428, 44 N.Y.S.3d 821 [4th Dept. 2016], lv denied 29 N.Y.3d 906, 2017 WL 1719017 [2017] ; People v. Wooten, 136 A.D.3d 1305, 1306, 24 N.Y.S.3d 550 [4th Dept. 2016] ). Contrary to defendant's contention, his acceptance of responsibility, lack of criminal history, and engagement in sex offender treatment were adequately taken into account in assessing his presumptive risk level (see People v. Davis, 170 A.D.3d 1519, 1519–1520, 94 N.Y.S.3d 422 [4th Dept. 2019], lv denied 33 N.Y.3d 907, 103 N.Y.S.3d 359 [2019] ; see also People v. Jewell, 119 A.D.3d 1446, 1448–1449, 989 N.Y.S.2d 766 [4th Dept. 2014], lv denied 24 N.Y.3d 905, 2014 WL 4637185 [2014] ). Although an offender's response to sex offender treatment, if exceptional, may provide a basis for a downward departure (see People v. Rivera, 144 A.D.3d 1595, 1596, 40 N.Y.S.3d 687 [4th Dept. 2016], lv denied 28 N.Y.3d 915, 2017 WL 582073 [2017] ), defendant failed to meet his burden of proving by a preponderance of the evidence that his response to treatment was exceptional.